Reuling v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 03 October 1950
• Citation: 44 N.W.2d 253,257 Wis. 485
• Parties: REULING et al. v. CHICAGO, ST. P., M. & O. RY. CO. REULING, v. CHICAGO, ST. P., M. & O. RY. CO.
• Court: Wisconsin Supreme Court

Page 253

44 N.W.2d 253

257 Wis. 485

REULING et al. v. CHICAGO, ST. P., M. & O. RY. CO.

REULING, v. CHICAGO, ST. P., M. & O. RY. CO.

Supreme Court of Wisconsin.

Oct. 3, 1950.

Rehearing Denied Dec. 5, 1950.

Edward H. Borgelt, Richard S. Gibbs, and Norman C. Skogstad, all of Milwaukee, for appellant.

Robert W. Arthur and Richard W. Bardwell, Madison, for respondents.

BROWN, Justice.

Appellant's first assignment of error concerns the instruction of the trial court to the jury on the subject of Mrs. Reuling's contributory negligence. Respondents submit that appellant cannot take advantage of an error in the charge to the jury because it made no objection to the charge when it was given. Such was the common law rule under which this court decided Getty et al. v. Rountree, 1850, 2 Pin. 379, 54 Am.Dec. 138, but by Sec. 2, Chap. 194, Laws of 1874 the legislature permitted exceptions to any portion of the charge to be filed at any time before the close of the term at which the action was tried, with the same effect as if taken before the jury retired. With minor modifications of language this statute (sec. 2869, Stats.) existed until 1925 when Chap. 286, Laws of 1925 further liberalized that part of the statute, renumbered sec. 270.39, by declaring, Sec. 270.39, Stats. '* * * It shall not be necessary to except to errors in the charge to the jury or to the findings of fact and conclusions of law made by the court or to the judge's refusal to charge the jury as requested but the same shall be reviewed by the appellate court without exception * * *.'

The current sec. 270.39, Stats. has changed the language but not the sense of this provision.

An 'objection' to a decision of a court or judge upon a matter of law is an 'exception'. 15 Words and Phrases, Perm. Ed., pages 461-464.

Under Chap. 194, Laws of 1874 and sec. 2869, Stats. questions involving the review of instructions to the jury were before us on several occasions, notably: Nisbet v. Gill, 1875, 38 Wis. 657; Wells v. Perkins, 1877, 43 Wis. 160; Dean v. Chicago and Northwestern Railway Company, 1877, 43 Wis. 305, 310, and Barkow v. Sanger and another, 1879, 47 Wis. 500, 3 N.W. 16, and in them we find nothing to indicate that an aggrieved party must make his grievance known at the trial in order to be entitled to a review of an instruction specified to be erroneous. The presence or absence of such an objection at the trial appears only in Barkow v. Sanger, supra, indicating that fact to be immaterial. In that case it affirmatively appears that objection was not made, but the party's right to review was not impaired. We conclude that the right of review of an erroneous instruction did not depend on objection (exception) to it at the trial under either the Laws of 1874 or under sec. 2869, Stats., nor does it under the still more lenient sec. 270.39, Stats.

Mrs. Reuling testified that, as the gates went up, she looked both to the east and the west, saw nothing coming and started to cross the tracks. Suddenly she heard her husband say, 'My God, a train!' She did not see the train but swerved the automobile. She did not remember what followed. The court gave the following instruction: 'In connection with the third question which inquires as to the lookout kept by the driver of the Reuling automobile, you are instructed that it is the duty of every operator of an automobile as he operates the same upon any highway to vigilantly exercise ordinary care with respect to the lookout kept by him, ahead of him, and, in that respect, to exercise such lookout at a point or points where his observation will be efficient for protection; and, if it is apparent that by approaching the path of a railroad train or any other method of proceeding he is liable to cause a collision or work an injury, it is his duty to take such other and safer method as he can with reasonable care and prudence under the circumstances then and there existing. * * *'

On the question inquiring whether Mrs. Reuling's negligence, if any, amounted to more than a slight want of ordinary care, the court charged: '* * * In connection with this question regarding slight want of ordinary care you are instructed that where there is a failure to look and listen within the zone where the duty exists, such failure, unless a sufficient excuse therefor is shown, constitutes more than a slight want of ordinary care.'

There was no instruction regarding such zone or duty other than that quoted above.

Sec. 270.21, Stats. directs the trial judge to charge the jury and it is obvious that his duty has not been performed unless his charge is a correct statement of the law applicable to the issue. The issue upon which this instruction was given was whether or not Mrs. Reuling exercise the degree of care required of her before entering upon the railroad tracks. It has uniformly been held that a person has an absolute duty to look and listen before crossing a railway track, to give vigilant attention in all directions from which a train may come, and that he is not absolved from such duty by the existence of safety measures or devices maintained by the railroad at the crossing, though such measures and devices are conditions to be considered in determining whether the person exercised ordinary care under the circumstances and conditions then present. White v. Minneapolis, St. P. &. S. S. M. R. Co., 1911, 147 Wis. 141, 133 N.W. 148; Gundlach v. Chicago & N. W. R. Co., 1920, 172 Wis. 438, 179 N.W. 577, 985; Rohde v. Chicago & Northwestern R. Co., 1893, 86 Wis. 309, 56 N.W. 872; White v. Chicago & Northwestern R. Co., 1899, 102 Wis. 489, 78 N.W. 585.

The instruction first above quoted clearly states that the driver's duty is to look ahead of him and '* * * in that respect to exercise such lookout * * *' etc. for his own protection. So phrased, the instruction negatives any duty to look elsewhere than ahead, resulting in a mistatement of the law and a misleading of the jury as to what is required of a driver. Mrs. Reuling testified she did look both to right and left and respondents submit that thereby she performed her duty and any defect in the instruction describing her duty was harmless. We cannot agree with this because, though the train was close at hand and there was no testimony that Mrs. Reuling's vision was obstructed, she failed to see it. The jury must, therefore, determine whether her observation was sufficiently vigilant and attentive to meet the standard of due care and, having been informed by the court that her only duty was to look ahead, it was practically compelled to find that there was no negligence in her failure to see an object in a sector where she was not required to look at all. Whether the jury would have made the same finding if it had been properly instructed that ordinary care required Mrs. Reuling to look and listen in all directions from which a train might come, to ascertain that the track was clear before she entered upon it, cannot be foretold. Appellant is entitled to an answer by a jury informed, not misinformed, concerning the driver's obligation.

Appellant contends that because Mrs. Reuling failed to see the passenger train which was approaching in plain sight she was therefore guilty of contributory negligence as a matter of law. This leaves out of consideration some of the surrounding circumstances, an important one of which was the raising of the gate. Though it does not release her from the obligation to look and listen, the matter of the gate is a circumstance to be considered in determining whether her vigilance in approaching the crossing met the standard of such care as is ordinarily exercised by the great mass of mankind under like circumstances. In this respect we have much the same problem that was presented in Gundlach v. Chicago & N. W. R. Co., supra. The question cannot be resolved in appellant's favor as a matter of law but is properly one for the jury.

Appellant complains, further, that the court erred in its instruction concerning future pain and disability. The court charged: '* * * Before you may find any sum for future pain and inconvenience and loss of earning, you must be convinced by a fair preponderance of the evidence and to a reasonable certainty that such future pain and inconvenience and loss of capacity to enjoy life would be expected to continue or occur as a natural and probable consequence of the injuries they have sustained.'

Considering the evidence given upon the trial, if this was the only assignment of error we would hesitate to direct a reversal of the judgment, though the charge would certainly state the law more accurately if it said 'will continue' instead of 'would be expected to continue'.

It is necessary to consider appellant's contention that a new trial should be ordered in the interests of justice because of the partisan manner in which the learned judge conducted the trial....